As Instagram evolves, copyright violations don't seem to be an issue for this social media giant. More images mean more views which mean more ad revenue, and there is zero incentive for Instagram to take any serious action against reposters, lost as it is in this huge gray area of what constitutes a breach of intellectual property.
For extreme sports athletes and models, this constant resharing of imagery is a boon; For us photographers who want to publish our work while also retaining some control over it, it's a nightmare.
Freebooting is a massive part of Instagram, and some would argue that Instagram itself is entirely complicit. For example, other than the terms of service that no one reads, there are no warnings to users that they should own, or have permission to use, the images that they are posting. If someone has stolen one of your images, only you can report it. The process itself is drawn out and confusing, discouraging less knowledgeable users with a maze of menus and unclear links buried in dense pages of text.
"Remember to post authentic content, and don’t post anything you’ve copied or collected from the Internet that you don’t have the right to post," the Instagram website states. But what if you're doing this repost thing that everyone does? Isn't that different? If the Metro newspaper can tell its 11 million readers that all you need to do is download an app and repost whatever you like without asking, then surely it's fine. Right?
If you type "repost" into the search bar at Instagram's help center website, there is one result which has nothing to do with reposting other users' images. The App Store's foremost repost app all but tells its users that they can repost whatever they want. There's no mention of permission. Many people have asked why Instagram doesn't include a repost feature inside its own app; one possible answer is that Instagram is being smart, letting millions of copyright breaches happen without being directly involved. Rumors of a native repost feature flew about last week but Instagram will have to take some fairly dramatic steps to implement it without undermining its own TOS, or completely changing the way that its platform functions.
The last two years have seen a growth in the number of hashtag-dependent reposts, whereby an Instagram profile will encourage other users to include a specific hashtag for a "chance to be featured." Often these profiles have tens, if not hundreds, of thousands of followers and offer that wonderful "exposure" in return. Many people include hashtags without realizing that this supposedly gives permission to reposting profiles to use their images. Upon seeing their images reposted, they typically don't complain, either because they believe that the hashtag gives the reposter permission (it doesn't), or because they don't mind the extra followers that it has brought them.
Last week, a Spanish climbing magazine with 29,100 followers, @desnivel_revista, published, with permission, a photograph of climbing legend Lynn Hill from her historic ascent of The Nose in Yosemite National Park. Taken by world-renowned Outdoor Photographer Heinz Zak, this image received over 3,000 likes.
This image was then reposted by another Instagram user. I won't name them as I don't want to give them any traffic. This user has 62,000 followers and is also a small-time online store selling rucksacks and climbing-related paraphernalia. The user had cited @desnivel_revista as the source and credited the photographer but, in effect, Hill and Zak were unwittingly advertising brightly-colored travel adapters.
I contacted the online store to ask whether they were aware that they were breaching Instagram's TOS. "I always give credit to the owner and if they don't like it, they can ask me to delete," I was told. I hold nothing against this company; they're exploiting a system that seems complicit in being exploited, following conventions that are prevalent across the platform. I pointed out to them that, by the time they remove the image at the owner's request, there's no point in it being removed as the advertising is done.
Imagine a business where you use other people's beautiful images and videos to build your brand at absolutely no cost and can advertise directly to 60,000 individuals who have pre-selected themselves as your perfect demographic.
I regularly see my own photographs published on a profile that sells terrible parkour merchandise, using an online t-shirt and mug printing service to process orders. They hold no stock and have no overheads. They take parkour photographs and videos from Instagram and repost them without permission, mixing in adverts for their products. I've reported the use of my images and they've been removed, but there are no further consequences. My images received their share of likes, did their work as adverts, and then disappeared down the feed. By the time they were removed, there was no need to remove them as they were no longer being viewed.
There are literally 1,200 other images and videos on the account, all used without permission, all posted without the owners' knowledge and with very little chance of the owners ever finding out. Instagram will take no action against this user as there is no incentive. It generates more views, and therefore more Instagram ad revenue, and the rights holders are not complaining because they don't know or simply don't realize.
Many of the freebooting accounts don't have online stores, but despite the appearance of "supporting a community," these accounts are now being monetized. Sponsored posts cost on average around $300. If a user has more than 100,000 followers, the fee can be as much as $800. Those that see their images reposted simply don't realize those that consume these images simply don't care.
Freebooting is perfect for Instagram's business model, and it's no wonder that measures to stop it from happening are non-existent, and that conventions have developed to allow and encourage its proliferation. Instagram even promotes freebooted content to its users, like this post that was suggested to me recently:
As a photographer, this is pushing me away from Instagram. This is an exchange I had on Twitter last week with a professional photographer and filmmaker (38,500 followers on Instagram) who preferred to stay anonymous:
"If you repeatedly infringe other people's intellectual property rights," says Instagram's Terms of Service, "we will disable your account when appropriate." In this context, "when appropriate" is legal-speak for "when it becomes Instagram's problem." If it's creating ad revenue, it's probably not a problem. Maybe we don't mind our images being exploited without us earning anything from it, but the system should at least be transparent. As it stands, Instagram's TOS is completely meaningless.
Of course, the 27,000 followers of the parkour t-shirt printers, and the 62,000 followers of the climbing travel adapters are all small-fry compared to the big influencers on Instagram. But when you consider that this is being replicated across a social media giant of 800 million active users, freebooting probably constitutes billions of image views every single day.
Rock climbing and parkour are two tiny examples of a huge industry that no one is talking about. I don't begrudge Instagram making money from their platform, but the system as it stands is opaque, and people — including many photographers — have no idea of its scale.
If you're a struggling photographer looking to make money, here's a suggestion: find an industry. Let's say skateboarding. Create an Instagram account. Share the skate community's cutting-edge content, always giving credit, always sharing the love. Use an app and repost images and videos several times a day, exploiting Instagram's tendency to reward those who post most frequently. You can even code a bot to automatically repost the skate videos that receive the highest engagement. Instagram might make it even easier in a few months with their own "repost" button. Create a following of, say, a hundred thousand people. Then make skateboarding t-shirts and start selling them to your perfectly targeted audience, mixing in a few sponsored posts along the way. It's what Instagram wants you to do.